JOSEPH A. MILLER, PETITIONER V. UNITED STATES OF AMERICA
No. 87-680
In the Supreme Court of the United States
October Term, 1987
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Third Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Question Presented
Opinion below
Jurisdiction
Statement
Argument
Conclusion
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-4a) is
unreported.
JURISDICTION
The judgment of the court of appeals was entered on August 19,
1987. The petition for a writ of certiorari was filed on October 17,
1987. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTION PRESENTED
Whether the government, in a prosecution under the Hobbs Act, 18
U.S.C. 1951(a), adequately proved that petitioner committed acts of
extortion and that those acts affected interstate commerce.
STATEMENT
Following a jury trial in the United States District Court for the
Western District of Pennsylvania, petitioner was convicted on eight
counts of extortion, in violation of the Hobbs Act, 18 U.S.C. 1951(a).
He was sentenced to two years' imprisonment, to be followed by five
years' probation, and he was ordered to pay $2,800 in restitution.
The court of appeals affirmed (Pet. App. 1a-4a).
1. The evidence at trial showed that petitioner was a union steward
for Teamsters Local 249 at the OK Grocery Company warehouse in
Pittsburgh. OK Grocery is the wholesale division of Giant Eagle
Markets, Inc., which operates retail grocery stores in three states.
During the period covered by the indictment, OK Grocery employed about
130 regular truck drivers, all of whom were members of Local 249.
Because of fluctuations in the grocery business, OK Grocery needed a
flexible work force that included some part-time drivers and loaders.
When additional part-time personnel were needed, they were obtained
from one of three sources: Local 249's "extra" list of unemployed
drivers and loaders; a 25-man call list of drivers from which OK
Grocery's regular full-time drivers were hired; and a personal list
kept by the union steward or the committeemen. When the union hiring
hall was open (between 5 a.m. and 11 a.m.), additional drivers were
drawn from the union's "extra" list. When the union hiring hall was
not open, additional drivers were obtained from the 25-man call list
and from the steward's personal list. Pet. App. 1a-2a; C.A. App.
A83-A90, A102.
OK Grocery had no input into the composition of the union's "extra"
list or the steward's personal list. The company made the final
selection for the 25-man call list, but the union steward or
committeemen sometimes made recommendations. C.A. App. A86, A89-A91.
The evidence showed that petitioner extorted money from drivers in
exchange for giving them part-time work or for helping them obtain
full-time work. For example, petitioner requested and received $50
from driver Michael McPaul on five occasions (C.A. App. A110-A111,
A119-A123). McPaul made the payments to secure work, and he worked
twice as many hours after the payments began as he had before (id. at
A111, A120, A121, A123). /1/
Part-time driver Robert Long, who had been unable to obtain
full-time work because he had a felony record, offered petitioner
$5,000 to place him on the 25-man call list (C.A. App. A135,
A154-A155). Petitioner told Long to "give the money to him, he would
take care of it" (id. at A154). Long subsequently made four payments
to petitioner totaling $2,300 (id at A158-A161). Thereafter,
petitioner told Long that he could not place him on the call list and
that he would return the money, but he never did so (id. at
A162-A163). /2/
James Gallagher, who was a union steward at a freight company, saw
petitioner on a monthly basis at union meetings. During a two-year
period Gallagher paid petitioner a total of $1,250 to ensure that his
son, a part-time driver at OK Grocery, obtained steady work (C.A. App.
A179-A181, A187, A193, A196). Petitioner complained that the first
payment -- $250 -- "wasn't too much" (id. at A189). After subsequent
payments, Gallagher's son worked more frequently (id. at A190, A193).
/3/
Part-time driver Robert Zadrowski was told by a friend of
petitioner's that petitioner wanted $400. Zadrowski refused to give
the friend the money. Shortly thereafter, petitioner arrived at the
scene and asked Zadrowski whether he wanted to work and, if so, why he
had not paid the money. Zadrowski thereupon gave petitioner $400.
C.A. App. A205-A206. On another occasion, Zadrowski paid petitioner
$250 after petitioner said, "If I don't get the 250, you don't work"
(id. at A210). /4/
2. The court of appeals affirmed petitioner's convictions in an
unpublished opinion (Pet. App. 1a-4a). The court held that the
government's proof satisfied the jurisdictional element of an effect
on interstate commerce, reasoning that the payments made by the truck
drivers decreased "the return (they) received for their labor in
interstate commerce" (id. at 2a-3a). The court also pointed out that
"(e)ven payments made indirectly on behalf of truck drivers for work
opportunity have a potential effect on interstate commerce" (id. at
3a).
ARGUMENT
1. Petitioner contends (Pet. 18) that the evidence was insufficient
to establish extortion under the Hobbs Act, 18 U.S.C. 1951(a), /5/
because it did not show that his victims "parted with their property
based on fear of economic harm." /6/ According to petitioner (Pet.
13-14), the truck drivers offered him unsolicited bribes to enhance
their work prospects, but there was no evidence that they feared they
would work fewer hours if they did not pay the money.
Petitioner's analysis of the evidence is incorrect; the government
amply established that the extortion victims had a reasonable fear of
economic harm. For instance, victim Michael McPaul testified that
after he began making payments, he "worked twice as much" as he had
before (C.A. App. A123). He was asked at trial, "Sir, did you believe
that if you did not pay Mr. Miller that money it would have an adverse
affect on your employment?" He replied, "In my mind I did, yeah." Id.
at A112. Robert Zadrowski testified that he gave petitioner $250
after petitioner said, "If I don't get the 250, you won't work" (id.
at A210). Thus, the evidence shows that the extortion victims
entertained a reasonable fear of prospective economic harm, and that
petitioner sought to exploit that fear in order to induce the victims
to make payments to him.
United States v. Capo, 817 F.2d 947 (2d Cir. 1987), upon which
petitioner relies, is distinguishable on its facts. Capo involved a
job-selling scheme at Eastman Kodak. Kokak needed to hire 2,300
people to produce its new disc camera. The company received thousands
of job applications and had no organized method of processing them.
Ultimately, the applicants who offered money to the defendants were
among the 2,300 hired, but "not one witness testified to any fear that
nonpayment would result in one of the defendants adversely affecting
his or her chances for a job at Kodak" (id. at 952). In addition,
there was "no evidence * * * that the 'victims' were coerced or
threatened by defendants" (id. at 954). On those facts, the court of
appeals held that the evidence was insufficient to show a fear of
economic loss on the part of the applicants. The court indicated,
however, that a Hobbs Act conviction will be sustained where "the
evidence (is) plain that nonpayment would result in preclusion from or
diminished opportunity for some existing or potential economic
benefit" (id. at 951).
In the present case, there was testimony that petitioner threatened
to withhold work from truck drivers who did not pay and that the
amount of work offered to each driver increased after payments were
made. Indeed, as noted above, Michael McPaul specifically testified
that he believed that if he did not pay petitioner, his employment
would be adversely affected (C.A. App. A112). In light of that
evidence, petitioner's conviction is not at odds with Capo.
2. Petitioner also argues (Pet. 24-28) that the evidence was
insufficient to show that the extortion affected interstate commerce.
That claim likewise lacks merit.
Under the Hobbs Act the government is required to prove that the
alleged extortion "obstruct(ed), delay(ed), or affect(ed)" interstate
commerce "in any way or degree." As this Court has made clear, that
statutory language manifests a congressional purpose "to use all the
constitutional power Congress has to punish interference with
interstate commerce by extortion, robbery or physical violence."
Stirone v. United States, 361 U.S. 212, 215 (1960); see also United
States v. Culbert, 435 U.S. 371, 380 (1978). In light of Congress's
intention to invoke the full breadth of its commerce power, the courts
of appeals in Hobbs Act cases have uniformly held that the magnitude
of the effect on commerce is immaterial and that even a de minimis or
potential impact on commerce is sufficient. See, e.g., United States
v. Tuchow, 768 F.2d 855, 870 (7th Cir. 1985); United States v.
Billups, 692 F.2d 320, 331 n.7 (4th Cir. 1982), cert. denied, 464 U.S.
820 (1983); United States v. Angelilli, 660 F.2d 23, 35 (2d Cir.
1981), cert. denied, 455 U.S. 910 (1982); United States v. Zemek, 634
F.2d 1159, 1173 n.20 (9th Cir. 1980), cert. denied, 450 U.S. 985
(1981); United States v. Rabbitt, 583 F.2d 1014, 1023 (8th Cir.
1978), cert. denied, 439 U.S. 1116 (1979); United States v. Harding,
563 F.2d 299, 302 (6th Cir. 1977), cert. denied, 434 U.S. 1062 (1978);
United States v. Starks, 515 F.2d 112, 124 (3d Cir. 1975).
In this case, the victim truck drivers were directly involved in
moving goods in interstate commerce. For instance, Michael McPaul and
Robert Long testified that they had driven from Pennsylvania to Ohio
and West Virginia in the course of their employment (C.A. App. A126,
A171-A172). Moreover, the drivers performed work for a company that
regularly conducted business in interstate commerce (id. at A83-A85,
A105). And the extortionate payments that the drivers made to
petitioner reduced the compensation that they received for their labor
in interstate commerce and thus amounted to a form of commission for
securing that employment. Consequently, the jurisdictional element of
the Hobbs Act was satisfied.
The Seventh's Circuit's decision in United States v. Mattson, 671
F.2d 1020 (1982), upon which petitioner relies (Pet. 25-28), is not to
the contrary. In Mattson, city employees extorted money from a
building maintenance worker in connection with his application for an
electrician's license. The government argued that Hobbs Act
jurisdiction existed because the issuance of the license would have
affected the financial condition of the worker's employer and his
outside electrical contractor (on whom the employer would no longer
need to rely). In rejecting that argument, the court concluded that
interstate commerce would not be affected because the worker himself
"was not conducting a business engaged in, or purchasing items from,
interstate commerce" and his employer never reimbursed him for the
extorted payments he made to the defendant (id. at 1025). Here, in
contrast, the drivers were personally involved in activity affecting
interstate commerce. Accordingly, this case does not conflict with
Mattson. /7/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
WILLIAM F. WELD
Assistant Attorney General
PATTY MERKAMP STEMLER
Attorney
DECEMBER 1987
/1/ The payments from McPaul formed the basis for petitioner's
convictions on Counts 4-8 of the indictment.
/2/ The payments from Long (three on one day, one on another day)
formed the basis for petitioner's convictions on Counts 9 and 10 of
the indictment.
/3/ One of the Gallagher payments formed the basis for petitioner's
conviction on Count 1 of the indictment. Petitioner was acquitted on
two other counts stemming from the Gallagher payments.
/4/ The payments to Zadrowski did not form the basis for any counts
of the indictment because the prosecution was barred by the statute of
limitations; rather, that evidence was admitted under Fed. R. Evid.
404(b) to show petitioner's intent and purpose in accepting the
payments.
/5/ Section 1951(a) prohibits "extortion" that affects interstate
commerce. Section 1951(b) defines "extortion" as "the obtaining of
property from another, with his consent, induced by wrongful use of
actual or threatened force, violence, or fear, or under color of
official right."
/6/ Petitioner never raised this specific issue in the district
court, either in his pretrial motion to dismiss or in his motion for
judgment of acquittal. It is therefore subject to review only on a
plain error standard. See Fed. R. Crim. P. 52(b).
/7/ Indeed, in a post-Mattson case, the Seventh Circuit upheld a
Hobbs Act conviction where the impact on commerce was very similar to
that involved here. See United States v. Anderson, 809 F.2d 1281
(1987) (payments by truck drivers to fix tickets for driving while
intoxicated affected commerce because of the increased likelihood that
the drivers would be on the roads in the future). Other post-Mattson
Seventh Circuit cases have reaffirmed that even a de minimis or
potential impact on commerce is sufficient. See, e.g., United States
v. Murphy, 768 F.2d 1518, 1530-1531 (1985) (payments left attorneys
with less money to purchase envelopes, stationery, and law books from
outside the state), cert. denied, 475 U.S. 1012 (1986); United States
v. Boulahanis, 677 F.2d 586, 589 (social club's extortion payments
left it with less money from which to spend its customary $68 per
month on coffee from out of state), cert. denied, 459 U.S. 1016
(1982).